FILED

United States Court of Appeals

Tenth Circuit

May 31, 2012

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
OVEX GOMEZ-ALVAREZ,

No. 11-3218
(D.C. No. 2:11-CR-20011-CM-1)
(D. Kansas)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior

Circuit Judge.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Defendant and appellant Ovex Gomez-Alvarez, a citizen of Mexico, pled

guilty to one count of illegally reentering the United States, after being convicted
of an aggravated felony, in violation of 8 U.S.C. 1326(a) and (b)(2). Despite
his plea of guilty, Gomez-Alvarez seeks to appeal his conviction and sentence.
His defense counsel avers that Gomez-Alvarez raises the following arguments:
his plea of guilty was not knowingly and voluntarily made; the district court erred
in including a 16-level enhancement in calculating his advisory sentence under
the United States Sentencing Commission, Guidelines Manual (USSG); the
sentence imposed is not substantively reasonable; and he did not receive effective
assistance of counsel before the district court. Gomez-Alvarezs appointed
counsel, Stephen W. Kessler, has filed an Anders brief and has moved to
withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967). GomezAlvarez has filed a pro se Response to that brief, and the government has declined
to file a brief. We therefore base our conclusion on counsels brief and GomezAlvarezs Response, as well as our own careful review of the record. For the
reasons set forth below, we agree with Mr. Kessler that the record in this case
provides no nonfrivolous basis for an appeal, and we therefore grant his motion to
withdraw and dismiss this appeal.

-2-

BACKGROUND
In September of 2008, Gomez-Alvarez was convicted of selling cocaine in
a Kansas state court, and he was sentenced to eighteen months imprisonment. In
December of 2009, he was released from the custody of the Kansas Department of
Corrections and was deported to Mexico.
On January 27, 2011, Gomez-Alvarez was pulled over in his truck by
Kansas police because he failed to signal a turn. He identified himself as Carlos
Gonzalez-Alvarez and informed the police officer that he had never been arrested
and had no identification on him. Gomez-Alvarez further told the officer that the
truck belonged to a friend named Raymond Gomez-Alvarez. When the officer
asked for additional identification, Gomez-Alvarez looked through his wallet, but
was unable to produce anything. The officer asked for permission to look through
the wallet, and Gomez-Alvarez agreed. The wallet contained a money transfer
form bearing the name of Ovex Gomez-Alvarez. When he was informed that it
was a crime to lie about his true identity, Gomez-Alvarez admitted his actual
name and conceded that he had been afraid to give his real name because he did
not have a drivers license. A subsequent records check revealed that he was a
previously deported felon. The police officer then contacted Immigration and
Customs Enforcement (ICE) and an ICE agent appeared and took GomezAlvarez into custody.

-3-

On February 23, 2011, Gomez-Alvarez was indicted on one count of

reentering the United States after having previously been deported following his
conviction for a felony, in violation of 8 U.S.C. 1326(a) and (b)(2). On
April 25, 2011, he pled guilty without a plea agreement. In connection with
Gomez-Alvarezs sentence, the United States Probation Office prepared a
presentence report (PSR), which calculated an advisory sentence under the
Guidelines. The PSR established a base offense level of eight, pursuant to USSG
2L1.2(a), which it then increased by sixteen levels based upon Gomez-Alvarezs
prior felony conviction. See USSG 2L1.2(b)(1)(A)(i). Following a three-level
reduction for acceptance of responsibility, Gomez-Alvarezs total offense level
was twenty-one. With a criminal history category of IV, the applicable advisory
Guidelines sentencing range was fifty-seven to seventy-one months. 1
Gomez-Alvarez did not file objections to the PSR, although his counsel at
sentencing noted Gomez-Alvarezs objection to the way in which the Guidelines
calculated his criminal history category. While it is not completely clear from the
record, it appears that Gomez-Alvarez believed that his criminal history score
overstated the seriousness of his criminal history. The district court overruled
this objection.

In addition to his prior drug conviction, Gomez-Alvarez had two prior

convictions for domestic battery.
-4-

Defense counsel requested a sentence between eighteen and twenty-four

months, while the government requested a sentence of sixty-eight months.
Defense counsel further stated that he believed the Guidelines range was too high
and that the sentence imposed punished Gomez-Alvarez again for his prior
convictions.
The district court agreed with the PSRs calculations and, after hearing
statements and arguments from both parties, including Gomez-Alvarezs request
for leniency and for a variance from the advisory Guidelines sentence because he
had reentered the United States in order to assist his ill mother, sentenced GomezAlvarez to sixty months imprisonment. The court stated that it had also
expressly considered the sentencing factors contained in 18 U.S.C. 3553. This
appeal followed.

DISCUSSION
The Supreme Court decision in Anders authorizes a defendants lawyer to
seek permission to withdraw from an appeal if, after conscientious examination,
the lawyer finds the appeal wholly frivolous. Anders, 386 U.S. at 744.
Invoking Anders requires the lawyer to submit a brief to the client and the
appellate court indicating any potential appealable issues based on the record,
and the client has an opportunity to respond to his attorneys arguments. United
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at
-5-

744). In evaluating the attorneys request to withdraw, we are required to

conduct a full examination to determine whether [the] defendants claims are
wholly frivolous. Id. If they are, we may grant counsels motion to withdraw
and dismiss the appeal. Id.
For the reasons set forth below, we agree with Mr. Kessler that the record
in this case provides no nonfrivolous basis for an appeal, and we therefore grant
Mr. Kesslers motion to withdraw and dismiss this appeal.
Gomez-Alvarezs counsel suggests four conceivable grounds for appeal:
invalid guilty plea, error in the sixteen-level increase imposed by USSG
2L1.2(b)(1)(A)(i), the substantive unreasonableness of the sentence, and
ineffective assistance of counsel. In addition, in his pro se Response to Mr.
Kesslers Anders brief, Gomez-Alvarez endeavors to raise six additional issues:
(1) a claimed error in that his counsel stated to [him] that [he] would be pleading
only to RE-ENTRY nothing more; (2) his counsel was ineffective for failing to
file a motion to suppress evidence; (3) the district court lacked jurisdiction to file
the indictment because he had already been transferred to ICE custody; (4) he was
entitled to credit on his sentence of time spent (from 1/27/2011 to 2/25/2011) in
ICE custody; (5) his prior removal or deportation violated due process and
therefore could not constitute grounds for enhancing his current sentence; and (6)
his conviction and sentence violate the Geneva Convention. Appellants Resp. at

-6-

1-2. Our review of the record convinces us that none of these arguments
constitutes a nonfrivolous basis for an appeal in this case.
I. Guilty Plea
A defendants plea of guilty is enforceable when made knowingly and
voluntarily. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). To
enter a plea that is knowing and voluntary, the defendant must have a full
understanding of what the plea connotes and of its consequence. United States
v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002).
In the context of the acceptance of a guilty plea, Fed. R. Civ. P. 11 is
designed to assist the . . . judge in making the constitutionally required
determination that a defendants plea is truly voluntary. United States v. Ferrel,
603 F.3d 758, 762 (10th Cir.) (quotations omitted), cert. denied, 131 S. Ct. 481
(2010). Accordingly, in accepting a guilty plea, a court must place the defendant
under oath and, in open court, inform the defendant of various rights and
obligations. See Fed. R. Crim. P. 11(b).
In this case, because Gomez-Alvarez failed to object to the district courts
Rule 11 colloquy, he must bear the burden on appeal to demonstrate that plain
error occurred in connection with the Rule 11 colloquy. United States v. Vonn,
535 U.S. 55, 59 (2002); United States v. Landeros-Lopez, 615 F.3d 1260, 1263
(10th Cir. 2010). Plain error occurs when there is (1) error, (2) that is plain,
which (3) affects the defendants substantial rights, and which (4) seriously
-7-

affects the fairness, integrity, or public reputation of judicial proceedings.

Landeros-Lopez, 615 F.3d at 1263 (quotations omitted).
Our review of the colloquy between the district court and Gomez-Alvarez
reveals no basis for finding plain error in Gomez-Alvarezs plea of guilty. His
counsel avers that the record reveals no basis for a claim that Gomez-Alvarez
misunderstood any aspect of that colloquy and Gomez-Alvarez himself only
claims that his counsel stated that he would be pleading only to RE-ENTRY
nothing more. Appellants Resp. at 1. Without more, this conclusory claim
provides no support for a claim that it was plain error for the district court to
accept Gomez-Alvarezs guilty plea as knowing and voluntary.
II. Sixteen-Level Increase in Offense Level
In calculating Gomez-Alvarezs advisory Guidelines sentencing range, the
district court properly increased Gomez-Alvarezs offense level by sixteen based
upon his prior deportation following a conviction for the felony of selling
cocaine. USSG 2L1.2(b)(1)(A)(i). 2 While Gomez-Alvarez does not challenge
the propriety of that increase under the Guidelines as written, his counsel
suggested at his sentencing hearing that such an increase is unfair and punishes a
defendant again for conduct (the prior felony) for which the defendant has already

We review sentences for substantive and procedural reasonableness under

an abuse of discretion standard. United States v. Lopez-Macias, 661 F.3d 485,
488-89 (10th Cir. 2011). Procedural reasonableness involves an assessment of
the method by which the sentence is calculated. Id. at 489.
-8-

been sentenced. His counsel also suggested that Gomez-Alvarezs criminal

history score was too high, given his actual past conduct, in part because his two
domestic violence charges involved the same woman and she was sanctioned as
well.
None of these arguments are sufficient to overcome the presumption of
reasonableness attached to a within-Guidelines sentence imposed by the district
court. We have previously rejected arguments similar, if not identical, to the
general attacks Gomez-Alvarez launches against the Guidelines governing his
conviction. See e.g., United States v. Martinez-Barragan, 545 F.3d 894, 905
(10th Cir. 2008) (noting that reentry of an ex-felon is a serious offense); United
States v. Ruiz-Terrazas, 477 F.3d 1196, 1204 (10th Cir. 2007) (holding that
claimed double-counting of a prior conviction to calculate both the offense
level and a sentencing enhancement is permissible). To the extent GomezAlvarez attempts to raise a policy objection to the sixteen-level increase
contained in the Guidelines, we have explicitly rejected that argument. See
United States v. Alvarez-Bernabe, 626 F.3d 1161 (10th Cir. 2010). These
allegations do not constitute nonfrivolous reasons to appeal the sentence in this
case.
III. Substantive Reasonableness of Sentence
[S]ubstantive reasonableness addresses whether the length of the sentence
is reasonable given all the circumstances of the case in light of the factors set
-9-

forth in 18 U.S.C. 3553(a). United States v. Damato, 672 F.3d 832, 838 (10th
Cir. 2012) (internal quotation marks omitted). We review substantive
reasonableness claims for abuse of discretion, id., afford[ing] substantial
deference to [the] district court[]. United States v. Smart, 518 F.3d 800, 806
(10th Cir. 2008). A sentence within the properly-calculated Guidelines range is
presumed on appeal to be reasonable. Alvarez-Bernabe, 626 F.3d at 1167.
At sentencing, Gomez-Alvarez argued for a sentence below the advisory
Guidelines range because he had illegally reentered the United States in order to
help his diabetic mother in getting needed medical care, and because of his
disagreement with the Guidelines as applied to his case. We have already found
no basis for appeal in Gomez-Alvarezs generalized objection to the Guidelines as
applied to his particular case. We also find no nonfrivolous basis in his claim
that his family circumstances, in particular his mothers illness, cause his withinGuidelines sentence to be substantively unreasonable. Our court has
acknowledged that the extensiveness of family and cultural ties, however the
factor is characterized, will still be part of tailoring an appropriate sentence[,] . . .
[but] it is also clear in assessing the reasonableness of a sentence that a particular
defendants cultural ties must be weighed against other [ 3553] factors. United
States v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006). The district court
clearly weighed Gomez-Alvarezs personal situation against the other relevant

-10-

sentencing factors in arriving at the within-Guidelines sentence imposed. This

argument provides no nonfrivolous basis for an appeal.
IV. Ineffective Assistance of Counsel
Defense counsel suggests that Gomez-Alvarez wishes to argue that his trial
counsel was ineffective because he failed to advise him of the immigration
consequences of his plea and conviction . . . and fail[ed] to request a sentence
variance based on the lack of a fast-track program in the District of Kansas.
Appellants Br. at 17. 3 Gomez-Alvarez also argues in his Response that his
counsel was ineffective in failing to file a motion to suppress evidence used to
convict appellant because the state police officer held appellant from going on
his way for over TWO HOURS before the officer called ICE AGENT, because
the search of his wallet was unreasonable, and because the initial stop of
Gomez-Alvarez was racially motivated. Appellants Resp. at 1-2.
It is well settled that the right to the effective assistance of counsel applies
to certain steps before trial . . . [including] the entry of a guilty plea. Missouri
v. Frye, 132 S. Ct. 1399, 1405 (2012). The Supreme Court has further held that
counsel has an obligation to advise [the defendant] that the offense to which he
[is] pleading guilty would result in his removal from this country, such that the

We assume that this issue involves a similar ground as Gomez-Alvarezs

allegation in his Response that error stemmed from his counsels statement to him
that he would be pleading only to RE-ENTRY nothing more. Appellants Resp.
at 1.
-11-

failure to so advise can constitute ineffective assistance of counsel. Padilla v.

Kentucky, 130 S. Ct. 1473, 1478 (2010).
Except in rare circumstances, [i]neffective assistance of counsel claims
should be brought in collateral proceedings, not on direct appeal. United States
v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011) (quoting United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)). Furthermore, [w]hen
ineffective assistance of counsel claims are pursued on direct appeal, they are
presumptively dismissable, and virtually all will be dismissed. Id. (quoting
Galloway, 56 F.3d at 1240).
With respect to Gomez-Alvarezs claim that his counsel was ineffective in
failing to advise him of the immigration consequences of pleading guilty, we
observe that during his guilty plea proceedings, Gomez-Alvarez was repeatedly
asked whether he had been informed of the consequences of pleading guilty. See
Tr. of Change of Plea Hrg at 3, 5-6, R. Vol. 2 at 6, 8-9. He consistently
responded affirmatively. Furthermore, Gomez-Alvarez responded positively
when asked if he understood that [his] plea of guilty may result in an order of
deportation from the United States. Id. at 11. Accordingly, this presents a rare
circumstance[] where we can resolve this ineffectiveness claim here, on direct
appeal, rather than deferring its consideration to collateral review. It is clear
from the record that Gomez-Alvarez had been informed by his counsel that a
guilty plea could result in deportation.
-12-

With respect to Gomez-Alvarezs claim that his counsel was ineffective in

failing to file a motion to suppress, we discern no such rare circumstance
permitting our evaluation of that claim on direct appeal. The claim is conclusory
and we have no information upon which to make a determination as to the
effectiveness of counsel in connection with the possibility of filing a motion to
suppress.
V. Gomez-Alvarezs Other Claims
Gomez-Alvarez also argues, in his pro se Response, that the district court
lacked jurisdiction to file an indictment of him because the arresting police
officer had transferred him to ICE custody. He cites an unnamed fifth Circuit
decision in support. Appellants Resp. at 2. This conclusory and undeveloped
argument provides no nonfrivolous basis for an appeal.
He further avers that he is entitled to credit on his sentence for time spent
in ICE custody. Gomez-Alvarez cites no authority for this claim. This argument
also provides no nonfrivolous grounds for appeal.
Finally, Gomez-Alvarez argues that his Stipulated Removal or
Deportation ORDER failed to comply with Due Process, Judicial Review . . .
under [United States v.] Mendoza-Lopez[, 481 U.S. 828 (1987)], Appellants
Resp., attach. #2, and that his arrest and/or conviction and sentence violated the
Geneva Convention because he was never told he could contact the Mexican

-13-

Consulate at any time. He fails to develop these arguments, or present any

evidence as to the nature of his deportation order. 4

CONCLUSION
We agree with Gomez-Alvarezs counsel that no meritorious basis exists
for Gomez-Alvarezs appeal of either his conviction or his sentence. We
therefore GRANT his counsels motion to withdraw and DISMISS this appeal.
ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

We note, in any event, that 8 U.S.C. 1326(d) was amended subsequent to

Mendoza-Lopez, and now requires an alien challenging an underlying deportation
to demonstrate that he exhausted any applicable administrative remedies, that he
was denied the opportunity for judicial review, and that the order was
fundamentally unfair.
-14-